Citation Nr: 0934876
Decision Date: 09/17/09 Archive Date: 09/23/09
DOCKET NO. 06-21 784 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Whether new and material evidence has been submitted to
reopen, or official service department records have been
submitted to reconsider, the Veteran's claim of entitlement
to service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Hoffman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1991 to April
1995. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a July 2005 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois. Jurisdiction of this case was
subsequently transferred to the RO in St. Paul, Minnesota.
The issue of entitlement to service connection for a
psychiatric disorder is addressed in the remand portion of
the decision below and is remanded to the RO via the Appeals
Management Center in Washington, DC.
FINDINGS OF FACT
1. In October 2000, the RO issued a rating decision that
denied the Veteran's claim for service connection for a
psychiatric disorder. Although provided notice of this
decision in November 2000, the Veteran did not perfect an
appeal thereof.
2. In March 2008, the Veteran submitted copies of her
service personnel records. These records existed at the time
of the RO's October 2000 rating decision, but many were not
previously obtained, and the RO's inability to obtain these
records at an earlier time was not due to the Veteran's
failure to provide the RO with sufficient information.
CONCLUSION OF LAW
The criteria for reconsidering the Veteran's claim of
entitlement to service connection for a psychiatric disorder
have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38
C.F.R. § 3.156(c) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
With respect to the Veteran's claim herein, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2008).
The RO's August 2004 and March 2006 letters advised the
Veteran of the foregoing elements of the notice requirements.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see
also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006)
(finding that where notice was not provided prior to the RO's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the RO); see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the
issuance of a fully compliant VCAA notification followed by
readjudication of the claim, such as a statement of the case
or supplemental statement of the case, is sufficient to cure
a timing defect).
With respect to the Dingess requirements, the RO's March 2006
letter provided the Veteran with notice of what type of
information and evidence was needed to
establish disability ratings, as well as notice of the type
of evidence necessary to establish an effective date.
As will be discussed in further detail below, the Board's
decision herein finds that the Veteran's claim for service
connection for a psychiatric disorder must be reconsidered
pursuant to 38 C.F.R. § 3.156(c). Accordingly, the notice
requirements for reopening claims under Kent v. Nicholson, 20
Vet. App. 1 (2006), are moot. However, by an August 2004
letter, the RO did provide the Veteran with Kent notice.
The duty to assist the Veteran has also been satisfied in
this case. The Veteran's service treatment records, VA
treatment records, and private treatment records have been
obtained. Additionally, the Veteran was afforded multiple VA
psychiatric examinations, including the May 2005 and May 2006
examinations which addressed the etiology of the Veteran's
current psychiatric disorder. Finally, there is no
indication in the record that additional evidence relevant to
the issue being decided herein is available and not part of
the record. See Pelegrini v. Principi, 18 Vet. App. 112
(2004).
Under these circumstances, no further notice or assistance to
the Veteran is required to fulfill VA's duty to assist in the
development of her claim herein. Smith v. Gober, 14 Vet.
App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela
Cruz v. Principi, 15 Vet. App. 143 (2001); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486;
Shinseki v. Sanders/Simmons, 556 U.S. ____ (2009); ____ S.
Ct. ____, 2009 WL 1045952, U.S., April 21, 2009 (No. 07-
1209).
The Board has reviewed all of the evidence in the Veteran's
claims folder. Although the Board has an obligation to
provide reasons and bases supporting this decision, there is
no need to discuss, in detail, all of the evidence submitted
by the Veteran or on her behalf. See Gonzales v. West, 218
F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board
must review the entire record, but does not have to discuss
each piece of evidence). The analysis below focuses on the
most salient and relevant evidence and on what this evidence
shows, or fails to show, on the claim. The Veteran must not
assume that the Board has overlooked pieces of evidence that
are not explicitly discussed herein. See Timberlake v.
Gober, 14 Vet. App. 122 (2000) (holding that the law requires
only that the Board address its reasons for rejecting
evidence favorable to the claimant).
In September 2000, the Veteran filed a claim seeking
entitlement to service connection for a psychiatric disorder.
By an October 2000 rating decision, the RO denied the
Veteran's claim. Although she was provided notice of this
decision in November 2000, the Veteran did not perfect an
appeal thereof, and the RO's October 2000 decision became
final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201
(2008).
In June 2004, the Veteran filed a claim to reopen the issue
of entitlement to service connection for a psychiatric
disorder. By a July 2005 rating decision, the RO denied the
Veteran's claim. In March 2008, the Veteran submitted copies
of her service personnel records, many of which were not
previously considered by the RO in October 2000.
In order to reopen a claim which has been previously denied
and which is final, the claimant must present new and
material evidence. 38 U.S.C.A. § 5108. If the claim is so
reopened, it will be reviewed on a de novo basis. 38
U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273
(1996); Manio v. Derwinski, 1 Vet. App. 140 (1991).
New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
In addition to new and material evidence, 38 C.F.R. §
3.156(c) provides that at any time after VA issues a decision
on a claim, if VA receives or associates with the claims file
relevant official service department records that existed and
had not been associated with the claims file when VA first
decided the claim, VA will reconsider the claim,
notwithstanding paragraph (a) of this section. Further, 38
C.F.R. § 3.156(c)(i)(3) provides that an award made based all
or in part on the records identified by paragraph (c)(1) of
this section is effective on the date entitlement arose or
the date VA received the previously decided claim, whichever
is later, or such other date as may be authorized by the
provisions of this part applicable to the previously decided
claim.
In this case, despite providing the Veteran with Kent notice,
the RO adjudicated her claim on the merits without any clear
consideration as to whether new and material evidence had
been presented to reopen the claim for entitlement to service
connection for a psychiatric disorder. Such a determination,
however, is not binding on the Board, and the Board must
first decide whether new and material evidence has been
received to reopen the claim. Barnett v. Brown, 83 F.3d
1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet.
App. 239, 244 (1993) (holding that Board reopening is
unlawful when new and material evidence has not been
submitted).
As the Veteran submitted relevant service department records
that existed and had not been associated with the claims file
when the RO issued its initial decision in October 2000, the
claim of entitlement to service connection for a psychiatric
disorder must be reconsidered. 38 C.F.R. § 3.156(c). As the
Board also finds that additional development is required in
this matter (discussed in the remand portion below), this
matter will be returned to the RO for additional development
and reconsideration.
ORDER
Reconsideration of the Veteran's original claim of
entitlement to service connection for a psychiatric disorder
is warranted, and the appeal is granted to that extent only.
REMAND
As noted above, reconsideration of the Veteran's original
claim seeking service connection for a psychiatric disorder
is required pursuant to 38 C.F.R. § 3.156(c).
After reviewing the Veteran's claims folder, the Board finds
there is a further duty to assist the appellant with her
claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159
(2008).
In an April 2005 statement, a social worker at the Veterans
Resource Center noted that the Veteran had been receiving
individual and group psychotherapy treatment there since
April 1995. Under the circumstances presented by this case,
the Board concludes that the RO should make an attempt to
obtain, with all necessary assistance by the Veteran, the
actual treatment records referred to in this letter.
Accordingly, the case is remanded for the following actions:
1. The RO must request that the Veteran
identify all VA and non-VA medical
providers who treated her for a
psychiatric disorder since her discharge
from the service in April 1995. The
Board is specifically interested in
obtaining medical treatment records
relating to her treatment from the
Veterans Resource Center from April 1995
to the present. The RO must then obtain
copies of the related medical records
that are not already in the claims
folder. All attempts to secure this
evidence must be documented in the claims
file by the RO. If, after making
reasonable efforts to obtain named
records the RO is unable to secure same,
the RO must notify the appellant and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; and (c) describe any further
action to be taken by the RO with respect
to the claim. The appellant must then be
given an opportunity to respond.
2. After completing the above action,
and any other development as may be
indicated by any response received as a
consequence of the action taken in the
paragraph above, the claim must be
reconsidered pursuant to 38 C.F.R.
§ 3.156(c). If the claim remains denied,
a supplemental statement of the case must
be provided to the appellant and her
representative. After the appellant and
her representative have had an adequate
opportunity to respond, the appeal must
be returned to the Board for appellate
review.
No action is required by the Veteran until she receives
further notice; however, she may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs